2021 Ohio 2854
Ohio Ct. App.2021Background
- Defendant Roger D. Fowler, II attended a 2017 birthday party and stayed overnight on a sectional couch; about 11 months later the host’s daughter A.W. (then 8) disclosed to her father that a man from the party entered her room and touched her genitals. A.W. identified Fowler from photographs.
- A.W. underwent a forensic interview and medical exam at Akron Children’s Hospital; investigators (Children Services and Columbiana County detectives) prepared reports and videotaped an interview of Fowler at the sheriff’s office (his attorney present).
- The state presented live testimony from A.W., forensic interviewer, Children Services investigator, party witnesses, and Dr. Paul McPherson (Akron Children’s medical director). The defense called Fowler; a proposed defense expert (Dr. Deborah Koricke) was excluded by the trial court.
- During the recorded police interview played to the jury, detectives made statements suggesting the child wouldn’t lie and commenting on Fowler’s demeanor; defense objected post-playback.
- A jury convicted Fowler of gross sexual imposition (R.C. 2907.05(A)(4)); trial court imposed a 42-month prison term, characterized as mandatory. On appeal the court affirmed the conviction but vacated the sentence and remanded for resentencing.
Issues
| Issue | State's Argument | Fowler's Argument | Held |
|---|---|---|---|
| 1) Trial court excluded defense expert (Koricke) | Report contained improper credibility conclusions and unsupported assertions beyond Koricke’s expertise; exclusion was within discretion. | Exclusion denied Fowler’s right to present expert defense testimony; redaction (not exclusion) would suffice. | Exclusion affirmed: report impermissibly opined on child’s veracity and law-enforcement adequacy; not admissible under Evid.R. 702 and Boston/Stowers framework. |
| 2) State’s expert testified beyond his Crim.R.16(K) report | Dr. McPherson’s report was timely disclosed; his testimony about children viewing pornography was general expert background, not case-specific surprise. | Questioning and testimony about pornography went beyond his written report and prejudiced defense (no chance to rebut). | Error found in asking beyond report but harmless: answer was general, not tied to A.W.; no prejudice and conviction supported by other evidence. |
| 3) Admission of detectives’ recorded statements (e.g., "children don’t lie" / opinions of untruthfulness) | Statements occurred during interrogation; admissible as part of recorded statement and non-coercive investigative technique; jury could assess credibility. | Detective opinions on veracity/usurped jury role and bolstered the child; admission was plain error. | Even if admission was error, it was harmless given other evidence, cross-examination, and Fowler’s testimony; no reversible plain error. |
| 4) Cumulative error | Individual rulings were proper or harmless; cumulative errors do not require reversal. | Even if single errors harmless, their cumulative effect denied a fair trial. | Cumulative-error claim rejected: combined errors did not undermine fairness or affect substantial rights. |
| 5) Mandatory sentencing | Mandatory term imposed by trial court was proper under its reading of statute. | Mandatory sentence unlawful post-Bevly; resentencing required. | Held for Fowler: mandatory-prison provision is unconstitutional per Bevly; sentence vacated and case remanded for resentencing. |
Key Cases Cited
- State v. Boston, 46 Ohio St.3d 108 (Ohio 1989) (expert may not testify as to veracity of a child declarant)
- State v. Stowers, 81 Ohio St.3d 260 (Ohio 1998) (expert testimony that victim’s behavior is consistent with sexual abuse is admissible)
- State v. Lang, 129 Ohio St.3d 512 (Ohio 2011) (experts may testify in terms of possibility; weight and sufficiency govern evaluation)
- State v. Boaston, 160 Ohio St.3d 46 (Ohio 2020) (Crim.R.16(K) requires disclosure of expert reports and provides its own remedy for noncompliance)
- State v. Harris, 142 Ohio St.3d 211 (Ohio 2015) (framework for harmless-error analysis when evidence admitted improperly)
- State v. Bevly, 142 Ohio St.3d 41 (Ohio 2015) (mandatory-prison provision in R.C.2907.05(C)(2)(a) unconstitutional; corroboration cannot trigger mandatory term)
- State v. Marcum, 146 Ohio St.3d 516 (Ohio 2016) (standard of review for felony sentences under R.C. 2953.08(G)(2))
- State v. Davis, 116 Ohio St.3d 404 (Ohio 2008) (police officer opinions that an accused is untruthful are inadmissible)